JUDGMENT DR.TANZIL-UR-RAHMAN, CJ.- There are 115 Shariat Petitions and three Suo Mola Shari'at Notice Cases challenging the various provisions of "interest" provided in several statutes, namely: -
1. The Interest Act, 1839.
2. The Government Savings Banks Act, 1873.
3. The Negotiable Instruments Act, 1881.
4. The Land Acquisition Act, 1894.
5. The Code of Civil Procedure, 1908.
6. The Co-operative Societies Act, 1925.
7. The Co-operative Societies Rules, 1927.
8. The Insurance Act, 1938.
9. The State Bank of Pakistan Act, 1956.
10. The West Pakistan Money Lenders Ordinance, 1960.
11. The West Pakistan Money Lenders Rules, 1965.
12. The Punjab Money Lenders Ordinance, 1960.
13. The Sind Money Lenders Ordinance, 1960.
14. Tte N.W.F.P., Money Lenders Ordinance, 1960.
15. The Baluchistan Money Lenders Ordinance, 1960.
16. The Agricultural Development Bank of Pakistan, Rules, 1961. 17.
The Banking Companies Ordinance, 1962.
18. The Banking Companies Rules, 1963.
19. The Banks (Nationalization) (Payment of Compensation) Rules, 1974.
20. The Banking Companies (Recovery of Loans), Ordinance, 1979.
2. By Shariat Petitions Nos.30/l,21/L.27/L,8/K of 1990, I/K, 4/K, 32/1,48/L,68/L,71/L,56/1,16-C/I,17-C/I of 1991, the Interest Act, 1839, which contains only one section, has been challenged.
3. By Shariat Petition No.31/I of 1990, section 8 of the Government Savings Banks Act, 1873, has been challenged.
2. By Shariat Petitions Nos.21/L,27/L of 1990, 33/1,42/1,69/L,70/L,35/I,I6-A/1,17-A/I of 1991 and S.S.M.No.2/I of 1991, sections 78, 79 and 80 of the Negotiable Instruments Act, 1881, have been challenged.
3. By Shariat Petition No.2/L of 1991, section 34 of the Land Acquisition Act, 1894, has been challenged.
4. By Shariat Petitions Nos.21/L,27/L,8/K of 1990, I/K,4/K,24/L,25/L,16/1,17/l,31/1,45/1,72/L, 74/L, 57/1 and S.S.M.No.3/I of 1991, sections 34,34-A and 34-B and rule 2(a) and (b) of Order XXXVll of the Code of Civil Procedure, 1908, have been challenged.
5. By Shariat Petitions No.27/1,28/1,1/L.85/L,30/1 of 1991, section 59(2) of the Co-operative Societies Act, 1925, has been challenged.
6. By Shariat Petition No.16/1 of 1990, section 3BB(1), clause
(b) of subsection (3) of section 27, sub-clause IV of clause (b) and sub-clause IV of clause (d) of sub-section (8) of section 29, 47B and clause (d) of sub-section (2) of section 81, of the Insurance Act, 1938, have been challenged.
7. By Shariat Petition No.17/1 of 1990, section 22(1) of The State Bank of Pakistan Rules, 1956, has been challenged.
8. By Shariat Petitions Nos.51/1,64/1,65/1,66/1,67/1 of 1991, sections | 2(k),2(l), I6 and 20 and Rule 27 of The West Pakistan Money Lenders Ordinance, 1960, have been challenged.
9. By Shariat Petitions Nos.14/1,19/1,17/L,33/L,68/1,72/1 of 1990,1 13/L,27/L,34/L,36/L,39/L,22/L,39/I, 33/L.41/L, 44/1, 60/L, 46/1, 47/1,46/L,48/1,54/1,62/L,79/L,69/1,68/1 of 1991, rule 17(1)(2) of The| Agricultural Development Bank of Pakistan Rules, 1961, has been challenged.
10. By Shariat Petition No.18/1 of 1990, section 25(2) of The Banking | Companies Ordinance, 1962, has been challenged.
11. By Shariat Petition No.21 /! Of 1990, rule 9(2) and (3) of The Banking | Companies Rules, 1963, has been chalk need.
12. By Shariat Petition Nn.Jti I of 1990, rule 9 of The Banks | Nationalization (Payment of Compensation) Rules, 1974, has been challenged.
13. By Shariat Petitions Nos.l2/L,21/L,7/K,27/L,73/I,13/L of| 1990,1/K, 17/L, 18/L,26/L,29/L,30/L,31/L,32/L,26/1,28/L,43/1,42/L, 21/L,49/L,50/1,67/L,73/L,76/L,66/L,89/L,90/L,91/L,93/L,58/1,16-B/I,17-B/I of 1991, sections 8(1), 8(2)a, 2(d), 7(2),13, 25(2), 26-A, of The Banking Companies (Recovery of Loans) Ordinance, 1979 have been challenged. Since common question relating to 'Interest' is involved in all these matters we intend tc decide them all by this judgment.
14. When the jurisdiction of this Court got restored to examine the fiscal laws since June 26, 1990, a number of Shariat Petitions were filed in this Court] challenging various fiscal laws containing provisions regarding interest therein.
15. This Court on 11th December, 1990, 26th January, 1991,13th January, 1991, 23rd January, 1991 and 24th February, 1991, admitted to regular hearing the several Shariat Petitions, challenging a number of provisions of the fiscal laws relating to interest filed by that time. Further Shariat Petitions Of similar nature continued being filed in this Court challenging the provisions of several laws relating to interest, which were admitted from time to time. Hearing of the last petition on interest concluded on 24-10-1991.
16. In order to decide these Shariat Petitions, the Court prepared a questionnaire relating to the impugned fiscal laws and sent it to distinguish 'ulama'. Scholars, economists and bankers of the country and abroad for their opinions to the said questions. The questionnaire reads as under:- . 1.
What is the definition of Riba ( V->) according to the Holy Qur'an and Sunnah of the Holy Prophet (PBUH). Does it cover the simple and compound interest existing in the present day financial transactions?
2. If banking is based on interest-free transactions, what would be its basic practical shape in conformity with the Injunctions of Islam? 3. (i) Does the interest on loans floated bv the Government to meet national requirements come under Riba ( vai )? (ii) What alternatives-can be suggested for the banks in case they grant loans without interest for various requirements?
4. Can, in the light of the Injunctions of Islam, any differentiation be made between private and public banking in respect of charging of interest on banking facilities or services rendered? 5. (i) Can the capital, according to the Injunctions of Islam, be regarded as an agent of production thus requiring remuneration for its use? (ii) Does devaluation of the currency affect the payment of loans taken before such devaluation? (iii) Can inflation causing rise in the cost/value of gold and consumer goods in term of currency have any effect on the sum borrowed?
6. What would be the alternatives in the context of present day economic conditions to carry on domestic and foreign trade efficiently without availing of banking facilities based on interest?
7. Is interest permissible or otherwise on the transactions between two Muslim States or a Muslim and non-Muslim State?
8. Is it possible to carry on insurance business otherwise that on the basis of interest?
9. Does interest accruing the Provident Fund come under Riba (\-J J)?
10. Can the payment of prize money on Prize Bond or Saving Bank Account or other similar'Schemes be regarded as Riba ( j)?
11. Would it be lawful under Islamic Law to differentiate between business loans on which interest may be charged and consumpt loans which should be free of interest?
12. If interest is fully abolished, what would be the inducements in an Islamic Economic System to provide incentives for saving and for economising the use of capital?
13. Can an Islamic State impose any tax on its subject other than Zakat and Ushr?
17. The following scholars, economists, 'ulama and bankers sent their written answers to the above questionnaire issued by this Court:- 1. Dr.S.M.Hasanuzzaman, Chief, Islamic Banking, Division, State Bank of Pakistan, Karachi.
2. Dr.Ramzan Akhtar, Assistant Professor, International Institute of Islamic Economics. International Islamic University, Islamabad.
3. Mr.Zia-ul- Haq, Chief of Research, Pakistan Institute of Development Economics, Quaid-i-Azam University, Islamabad.
4. Dr.Saeedullah Qazi, Director, Shaikh Za'id Islamic Center, University of Peshawar, Peshawar.
5. Mr.Arshad Javid, Vice President, Non-interest Banking Department, Habib Bank Limited, Head Office 16-Habib Bank Plaza, Karachi- Pakistan.
6. Prof.Dr.Sayyid Tahir, International Institute of Islamic Economics, International Islamic University, Islamabad.
7. Mr.Nawazish Ali Zaidi, Consultant on Islamic Banking, International Institute of Islamic Economic, International Islamic University, Islamabad.
8. Maulana Gohar Rahman, Shaikhul Hadith/Muhtamim, Darul Ulum Tafhimul Qur'an, Malakand Road, Mardan.
9. Maulana Muhammad Rafi Usmani, Shaikhul Qur'an Wal Hadith and Muhtamim, Darul Ulufn, Karachi-14.
10. Syed Maroof Shah Shirazi, Advocate, Village and Post Office Chinar Kot, Mansehra.
11. Prof.Dr.Ala'eddin Kharofa, International Islamic University, Selangore, Malaysia.
12. Prof.Dr.Najatullah Siddiqui, International Islamic Economics Centre, Malik Abdul Aziz University, Jeddah.
18. A consolidated statement of their question-wise opinions has been prepared in this Court and is appended to this judgment as appendix 'A'. It may be read as further reference material to the issues under examination by this Court. This Appendix has been compiled by our Research Section.
19. The following scholars and economists/bankers, on request of this Court appeared and made their submissions: - 1. Mr.Mansoor Ahmad Khan, Advocate, Karachi. 2.
Mr.Khadim Hussain Siddiqui, Former President, Allied Bank Limited, Karachi.
3. Dr.Hasanuzzaman, Chief of Islamic Banking Division, State Bank of Pakistan, Karachi.
4. Dr.Muhammad Uzair, Economic Adviser, National Development Finance Corporation of Pakistan, Karachi.
5. Dr.Muhammad Hussain, Director, International Islamic University, Islamabad.
6. Dr.Faiz Muhammad, Director General, International Institute of Islamic Economics, International Islamic University, Islamabad.
20. The Court during its sitting at Karachi heard Mr.Mansoor Ahmad Khan, a well-known Advocate, as amicus-curiae, who happended to be a member of the Banking Delegation, sent abroad by the Government in 1987. He stated that bank interest is banned in Islam. The banks may, however, run their business on profit/loss sharing or Mudarabah system. He proposed that merchant banking system may be established in Pakistan and the banks may enter into business and earn profit on the money deposited with them and share it with the depositers.
21. He submitted a copy of the Report of the Pakistan Banking Delegation,' which was sent to certain Muslim countries to examine their banking system and other modes of financing. Being a member of that delegation he stated that almost all the Muslim economists and scholars whom the delegation met were of the view that "time-related fixed monetary return on a loan, however, conceived or planned, falls to be considered as riba prohibited in Islam." They unanimously proposed that banking system must be based on profit/loss sharing. Relevant extracts from his Report as referred to by the learned counsel have been incorporated in appendix 'A'.
22. The court also heard a highly experienced banker, Mr.Khadim Hussain Siddiqui of Karachi, who has been President of the Allied Bank Limited.
He was also member of Penal of Experts formed by the Council of Islamic ideology, in 1978 for eradication of interest from the country's economy. He categorically stated that bank interest comes within the definition of Riba and is banned in Islam in whatever form or for whatever purpose it may be. There is no difference between the consumption loans and productive loans so far as the *. Other Members included Mr.S.Nasim Ahmad, Director National Bank of Pa'kistan as Convener and Co-ordinater, Dr.Syed Riaz-ul-Hassan Gillani, Deputy Attomey General, Government of Pakistan, Mr.Abdul Latif, Joint Secretary, Company Law, Govemment of Pakistan and Mr.S.Safwan Ullah Senior Executive Vice President, Bankers Equity Limited, prohibition of interest in Islam is concerned. He suggested that Merchant banking is the alternate for the interest-free banking system. He further submitted that Musharakah and Mudarabah are workable systems for interest- free banking. He was of the firm view that the Interest should be abolished in one-go, not only from the Banks and other financial institutions but the Government also. No difference should be made between private Banking and the Government Banking. Partial or half-hearted measures for abolition of interest will prove abortive as is evident from the experience of history of past ten years.
He suggested that the Banks have to act as future 'Holding Companies' and for that purpose structural changes will have to be made in the present banking system.
23. Regarding effect of inflation resulting decrease in the value of money, he submitted that it should have no effect on repayment of the loan. He also referred to the Report of the Council of Islamic Ideology in this respect. He negated the impression that abolition of interest will adversely affect the savings. In his view savings have always been income-related and will have no adverse effect, if the interest is abolished, and interest-free alternatives are made available to the public.
24. The Court also heard Dr.Hasanuzzaman, Chief of Islamic Banking Division, State Bank of Pakistan, Karachi. He submitted that riba (interest) is prohibited in Islam in all its forms or purposes. Interest-free banking can be established on the basis of Musharakah, and Mudarabah. He further stated that depreciation in the value of the currency should not affect the repayment of the loans. He further stated that riba (interest) is prohibited between a Muslim and non-Muslim even in a Non-Islamic country. He ct^ted that the eradication of riba (interest) will not affect the motives of saving among the people.
25. Dr.Hasanuzzaman, stressed on the fact that the present structure of banking cannot bring any ideological change. The whole structure is to be changed and reconstructed according to Islamic concepts. His views in some detail have also been incorporated in the consolidated statements of opinions vide appendix 'A'.
26. The Court also heard Dr.Muhammad Uzair, Economic Adviser, National Development Finance Corporation of Pakistan. He clearly stated that the interest whether simple or compound is unlawful (haram). There is Ijma (consensus of the opinion) of the Ummah.
In his view, an attempt to make difference between usury and interest is the result of the misgivings created by western scholars. As an alternate to the present banking system he expressed his view that Mudarabah and Musharakah are the two alternate modes of the present banking. There will be a partnership between the bank and the depositors on the one hand and the bank and its customers on the other, who would like to transact business with the banks. He stated that there may be, for example, an arrangement that the entrepreneur (or the borrower in the present-day banking system) and the bank would share the profit in a ratio of 50 percent each, or 60 percent for the entrepreneur and 40 percent of the bank, or any such ratio which may be agreed upon between themselves. It may be regulated by the Government or the Central Bank which in the case of Pakistan will be the State Bank. Similarly, there will be an arrangement between the# bank and the supplies of capital (depositors in the present banking system) for sharing the profit in the ratio of 50 percent each or 60 percent for the bank and 40 percent for the supplier of capital funds or the depositors. This may seem at first sight to be a complex arrangement, but once the system is introduced and begins to operate in our economy it will become as mechanical and routine as the present-day system wherein banks pay a higher rate of interest on certain categories of deposits while paying nothing to some types of depositors, e.g. Current-Account Holders. The source of profit for the bank is the difference between the interest it receives and the interest it has to pay to the depositors. Similarly, in the changed framework required for interest-free banking, the entrepreneurs and the bank would share the profit on an agreed percentage or ratio, a higher proportion going to the entrepreneur vis-a-vis the banks; and the depositors would share a smaller proportion of what comes to the bank. Variation in ratios may reflect different tiers of the system.
27. The percentage or the ratio for sharing the profit between the entrepreneurs (borrowers) and the banks on the one hand, and that between the banks and the depositors on the other, should be determined in the normal course of business activities and bargaining or should be regulated by the government or the State Bank as a policy variable or a political decision by the government, either arrangement would serve the purpose as far as the conceptual framework is concerned.
Thus, contract of Mudarabah will be two folded: One between the depositors and the Bank, and the other between Bank and the entrepreneurs and the customer and bank will share the profit/loss on the ratio agreed in the contract. He was of the view that interest is prohibited whether it is transacted by the Government or the bank or individuals. In his view, indexation caused due to inflation in the cost/value of some goods cannot be adopted as an alternate to interest for ideological as well as practical reasons. The abolition of interest in his view will have little oearing on saving as the saving has always been income- related.
28. He further submitted that devaluation in the currency shall not affect the return of loan taken before such devaluation and the loans shall be re-payable in such quantity in which they have been taken irrespective of the value of the currency in the market. He also contended that Prize Bond and other saving schemes come under riba and are thus prohibited. Regarding insurance he contended that it can be based on non-interest system as has been in practice in some Muslim countries like Malaysia and Sudan.
29. The Court during its sitting at Islamabad heard Dr.Muhammad Hussain, Director International Institute of Islamic Economics, International Islamic University, Islamabad. He submitted that riba (interest) is prohibited in Islam in all its forms. He explained the definition of riba (interest) and relied upon the definition of a Hanafi jurist, Abu Bakar Al-Jassas who defines riba as "time-related fixed monetary return on a loan." He thus submitted that bank interest comes under the prohibited riba. He stated that banking system in an Islamic economy can be based on Musharakah and Mudarabah. He referred to the Report of the Council of Islamic Ideology on the elimination of interest and of other Seminars arranged by their Institute on the elimination of Interest and indexation and pointed out that there are alternates available in the field of interest free banking, if the Government really intends to eliminate riba (interest). He further submitted that depreciation in the value of the currency shall not affect the recovery of loan taken before such depreciation. He explained that all Bond Schemes come under the category of the prohibited riba.
30. The Court also heard Dr.Faiz Muhammad, Director General, International Institute of Islamic Economics, International Islamic University, Islamabad. He submitted that interest is prohibited in all its forms and that usury and interest are one and the same thing. He related the history of Jew merchants who first started charging interest in the western countries in sixteenth centtiry and developed the modern interest bearing capitalistic system. He further enunciated that riba, in any form it may be, is prohibited and all Bond Schemes come under riba. He, however, submitted that some 'ulama' of Pakistan were in favour of Prize Bond Scheme but when their function was explained to them, they retracted from their earlier view. He also referred to the Seminars arranged by the International Institute of Islamic Economics, International Islamic University, Islamabad, on the elimination of interest and stated that all the participants of the Seminars were unanimous that bank interest comes under the category of the riba prohibited in Islam and that any form of profit-loss sharing like Mudarabah and Musharakah be established in banking system and interest should be eliminated.
31. The Court heard the petitioners who were not represented by their counsel. All the petitioners and their Advocate contended that bank interest is prohibited in Islam. Most of them relied upon Verses 2:275 - 278 of the Holy Qur'an and three judgments of one of us, Dr.Tanzil-ur- Rahman, Judge, High Court of Sindh (as he then was) reported as Messrs Bank of Oman Limited vs. Messrs East Trading Company Limited and others (PLD 1987 Karachi 404) Irshad H.Khan Verses Parveen Ajaz (PLD 1987 Karachi 466) and Habib Bank Limited Vs. Muhammad Hussain and others (PLD 1987 Kar.612 at 629) wherein Bank interest and the interest contracted on Promissory Note was refused to be decreed and the provisions containing in a number of enactments relating to interest were held as repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet ( fe-) ' Some of the counsel also referred to a judgment of MrJustice Khalilur Rahman, of the Lahore High Court, reported as Shahbazud Din Chaudhary and 27 others Vs. Messrs Services Industries Textiles Limited and 4 others (PLD 1988 Lahore 1), wherein the learned Judge, inter-alia, observed that in view of the clear and unequivocal Injunctions of the Holy Qur'an and Sunnah of the Holy Prophet ( ^rfSt/lcV*) respondent company is required to take corrective measures' and the mode of investment will have to be changed, whereas some others referred to two judgments of MrJustice Wajihuddin Ahmad, reported as Aijaz Haroon Vs. Inam Durrani (PLD 1989 Karachi 304) wherein the learned Judge in view of the Constitutional provisions read with Objective Resolution came to the conclusion that the interest as such was prohibited, but the creditor can be compensated on the basis of indexation due to inflation and Tyeb Vs. Messrs Alpha Insurance Co. Limited and others (1990 CLC 428) wherein the above view was adopted by the learned Judge.
32. Mr.Rashid Murtaza Qureshi, Advocate, referred to the Jewish Encyclopaedia Britannica and a book titled "Pawns in the Game" by Willium Guy and submitted that Jews had dominated the Western world by accumulation of wealth through charging interest on loans and other financial transactions.
33. Malik Allah Yar, Advocate, Referring to several Verses of the Holy Qur'an jon interest, submitted photostat copies of a number of commentaries (on the Holy Qur'an and several books on Ahadith.
34. Syed Afzal Haider, Advocate, appearing for one of the petitioners relying on Karachi judgment reported as Messrs Bank of Oman Limited Vs. Messrs East Trading Company Limited and others (PLD 1987 Karachi 404) on the question of riba, referred to the concept of Sunnah.
35. Mr.Muhammad Ismail Qureshi, Advocate, appearing for one of the petitioners referred to two Ahadith from Mu'tta Imam Malik and Bukhari, on the question of riba, besides referring to the Qur'anic Verses.
36. Mr.Khalid M.Ishaque, Advocate, who appeared on 10.6.1991 on behalf of National Bank of Pakistan and State Life Insurance Corporation, filed interim written reply on behalf of his clients and raised the following pleas:- i) The Banks in Pakistan are working within the framework of Banking, instruments prescribed by the State Bank, with the approval of Council of Islamic Ideology, as valid Islamic instruments. Ii) There is a considerable juristic opinion available to the fact that on increase to offset the inflation would have legal justification and would not be counted as riba; and iii) There is juristic opinion available to the fact that Bank interest does not fall in the category of prohibited riba (interest). According to his opinion, Banks participate in the productive processes of the Society/Community, make productive labour possible, increase social wealth, and take only a fraction of the profit that accrues to them which is not riba.
37. As regards the first plea that the Banks in Pakistan are working within the framework of Banking instruments prescribed by the State Bank, with the approval of the Council of Islamic Ideology", the learned counsel referred to page 67 and onwards of the Council's Report on "Consolidated Recommendations on the Islamic Economic System" which, in fact, was the comment of the Ministry of Finance on interest-free Banking system. He was, therefore, pointed out that it was the stand of the Government. For the Council's view, his attention was invited by the Court to page 73 onwards, wherein the reply appears to have been given by the Council of Islamic Ideology to the said Ministry, which he regretted to refer and stated that he did not have the complete report with him. The learned counsel did not pursue the matter any further giving an impression to this Court that he did not want to press the same before us. In any case, the learned counsel failed to substantiate his plea. However, we have dealt with the point, but in another context, which will falsify the plea of the learned counsel.
38. So far as the other two pleas are concerned, the learned counsel referred to an article written by MrJustice (Retd.) Qadeeruddin Ahmad, former Chief Justice of the erstwhile High Court of the West Pakistan published in two instalments in the issues of 28.11.1978 and 29.11,1978 of Daily Jang Karachi, under the Heading: 1 , \ Learned counsel's attention was drawn to the reply written by one of us (Dr.Tanzil-ur-Rahman, Advocate and Honorary Law Adviser to the Islamic Research Institute, Islamabad, as he then was) and published in four instalments in the issues of 9.12.1978, 10.12.1978, 13.12.1978 and 16.12.1978 of Daily Jang Karachi, under the Heading. p p> a- v '& (^j ^ D ^ . Ow Since the arguments of Mr. Justice (Retd). Qadeeruddin Ahmad were all repelled in the reply given by Dr.Tanzil-ur-Rahman, we do not feel inclined to encumber this judgment by repeating the same arguments and counter arguments. (Also published in" " Siddiqul Trust, Karachi):
39. The Court, then asked the learned counsel to place Qur'anic Verses or Ahadith or Juristic views on the two pleas for which he requested us to grant time, as he was not ready with the material. The said petitions were, therefore, adjourned to 1.7.1991, as requested. On that day, the counsel did not appear but sent a lengthy Note through his client with a request for a long adjournment after Summer Vacations which we accordingly granted.
40. In this Note, we found that about 68 pages were devoted to the concept of private property which has no relevance to the plea under consideration. In the latter part of the Note, in support of the proposition with regard to offset the inflation and thus giving legal justification for interest he has failed to quote any Hadith of the Holy Prophet ( I ) or Athar | ( Jj'i ) of any of the Companions of the Holy Prophet ( J-'S \^*) or any single opinion of the jurist, worth the name, of the past or present. He has, however, relied on a part of Verse No. 279 of Surah Al-Baaarah ? (Deal not unjustly and ye shall not be dealt with unjustly). It appears that the learned counsel ha not understood the underlying philosophy of 'Zulm' (rtJi) in the context of Rib;. By the word ' prU7' ' here it means to take anything in excess or give less than the capital (with reference to the context of the three Verses, on the subject of Riba taken together). This is injustice which is prohibited. The Holy Qur'an permits receiving back of the capital sums but forbids any addition or deduction therefrom. The words " do not denote their purchasing power but their actual quantity if they are in circulation. So far as the addition on the amount borrowed in case of inflation or deduction from the same, in case of deflation, is concerned the lenders or the borrowers, as the case may be, can in no way be held responsible for the same because the conditions related to that situation are beyond their control and in itself will amount to injustice ' if they are penalized for the same. That is why no Commentator of the Holy Qur'an or Hadith or a Jurist worth the name has ever approved it, inspite of the element of price variation in their times which has been the constant phenomenon. For example, as pointed out by Dr.Muhammad Hussain, Director, International Institute of Islamic Economics, International Islamic University, Islamabad, the inflation rate during the days of Imam Abu Yusuf, as compared to the period of Khulafa-e-Rashideen, had increased by Fifteen per cent. We will be dealing further with this issue in some detail at an appropriate place.
41. On the next date of hearing i.e. 13.10.1991, the learned counsel submitted another written Note in support of the plea that the Bank interest does not come within the definition of Riba. By a cursory glance it appeared that he had referred to the names of original authors but had used only the secondary source in the said Note. As he had not brought the original source material, he was directed to send photostat copies of the original texts of the material written by the several authors which have been named in the said Note. On 23.10.1991 photostat copies of some of them were received in the office. They are as under:- i) Three pages including title page of the book titled "Unlawful gain and legitimate Profit in Islamic Law" by Nabil A.Saleh. Ii) Seven pages including title page of the book titled " volume-IV by" *, iii) Four pages including title page of book titled" " by 1 "Lahore. Iv) Five pages including title page of book titled " " by Syed Abdul Aala Maudoodi Lahore. v) Four pages including title of" " appended " " (ibid). Vi)
Seven pages including title page of " -L-" by Hazrat Maulana Mufti Mohammad Shafi Mufti-e-Azam Pakistan, Karachi. Vii) Three pages including title 'The Holy Qur'an by Abdullah Yusuf Ali, Lebanon.
42. We have gone through the aforesaid Note wherein the opinions of Ibnal-Qayyim, Mohammad Abduhu, Rashid Raza, Sanhuri, Daoualibi, Shaikh Draz, Maulana Abd,ul Kalam Azad, Maulana Abul Aala Maudoodi, Maulana Mufti Mohammad Shafi and Dr.Wahba Al-Zuhaili are